SOUTH AFRICA – Despite suggestions from justices of the Supreme Court of Appeal to abandon an appeal, the Presidency stuck to its guns, in court on Thursday, in its bid to keep secret a report on the controversial 2002 Zimbabwean election.
The Mail & Guardian has been trying for more than six years to get access to the report commissioned by former president Thabo Mbeki and written by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Justice Sisi Khampepe. Three presidents have fought the newspaper’s case.
The court case went all the way to the Constitutional Court via the Supreme Court of Appeal.
The Constitutional Court sent it back to the High Court saying that it should have taken a “judicial peek” at the report first before making its order, and it then went back again, on Thursday, to the Supreme Court of Appeal.
Before argument had even begun, Supreme Court of Appeal Justice Visvanathan Ponnan asked whether the appeal was not academic, given that there had been two elections since in Zimbabwe.
Justice Mahomed Navsa added: “There may be a retrospective embarrassment value; but for the rest, isn’t this just a fight about history?”
But after consulting with his clients, counsel for the Presidency, Marumo Moerane SC said he would persist with the appeal.
He argued that Judge Joseph Raulinga was wrong when he refused to entertain an affidavit by former president Thabo Mbeki, which said the object of justices Moseneke’s and Khampepe’s mission to Zimbabwe was to help with the formulation of policy.
Judge Raulinga’s refusal to admit the affidavit was a “misdirection”, said Mr Moerane, because the judge had asked for submissions from the parties following his “judicial peek”. But then, when he was given the affidavit as a submission, he would not entertain it.
But counsel for the Mail & Guardian Jeremy Gauntlett SC said the judge was right to reject the affidavit as it was a belated attempt to bring in new evidence. In any event, it “adds nothing” to Mr Mbeki’s case. Business Day Live
